TULL v. VAUGHN

November 10, 2005.

MARK TULL, Petitioner
v.
DONALD T. VAUGHN, ET AL., Respondents.

The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge

MEMORANDUM

INTRODUCTION

Mark Tull, an inmate currently confined at the State
Correctional Institution at Graterford, Pennsylvania, originally
filed this petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 in the United States District Court for the Eastern
District of Pennsylvania on August 28, 2001. The matter proceeded
there until February 15, 2002, when it was transferred to this
court.*fn1 Petitioner was convicted of two (2) counts of
terroristic threats, one (1) count of reckless endangerment, one
(1) count of disorderly conduct, and two (2) summary offenses. On
October 31, 1996, he was sentenced to a term of 23-120 months, to
be followed by 5 years probation. In the petition Tull raises the following grounds: (1)
denial of equal protection by the police department by not having
a specific policy for handling HIV positive arrestees; (2) the
destruction of physical evidence by police; (3) improper search
warrant resulting in illegally obtained evidence; and (4)
ineffective assistance of counsel in failing to obtain witnesses
statements/subpoena witnesses. For the reasons that follow, the
petition will be denied.*fn2

PROCEDURAL HISTORY OF CASE

Following the issuance of a Show Cause Order by this court on
April 24, 2002, a response and supporting exhibits were submitted
by respondents on May 29, 2002. (Doc. 9.) Petitioner thereafter
submitted a traverse. On July 31, 2002, the court issued an
opinion dismissing the petition on the basis of petitioner's
failure to exhaust his claims and procedural default. (Doc. 12.)
Specifically, the court found that because Tull failed to appeal
his claims to the Pennsylvania Supreme Court, he had failed to
exhaust and further failed to allege any cause to excuse his
procedural default.

Tull thereafter filed an appeal from this ruling with the Third
Circuit Court of Appeals. On March 25, 2003, the Third Circuit
granted Tull's request for a certificate of appealability on the
question of whether Pennsylvania Supreme Court Order 218, In re:
Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218
Judicial Administration Docket No. 1 (Pa. May 9, 2000) ("Order
218"), makes discretionary review in the Pennsylvania Supreme
Court unavailable for purposes of the federal exhaustion
requirement in 28 U.S.C. § 2254 or otherwise may constitute a
general waiver of the exhaustion requirement. In filing the
instant habeas petition, Tull had argued that he did not file an
appeal with the Pennsylvania Supreme Court in light of Order 218.
This court ruled that Order 218 did not foreclose the filing of a
petition for discretionary review with the Pennsylvania Supreme
Court.*fn3

On March 15, 2005, the Third Circuit issued an Order vacating
this court's order of July 31, 2002, and remanding the instant
habeas petition for further proceedings. In issuing their ruling,
the Third Circuit relied on the case of Lambert v. Blackwell,
387 F.3d 210, 233 (3d Cir. 2004) wherein said court held "that
Order No. 218 renders review from the Pennsylvania Supreme Court
`unavailable' for purposes of exhausting state court remedies
under § 2254(c)." The Third Circuit did acknowledge that its
decision in Lambert was not issued until after this court's
dismissal of Tull's petition. Prior to that time, there was no
guidance from the Third Circuit on this issue. (Doc. 21.) Following remand of the case, respondents were directed to file
a response to the petition and a supporting memorandum of law
addressing the merits of Tull's claims. (Doc. 22.) A response was
thereafter submitted on June 8, 2005. (Doc. 26.) A traverse was
later submitted by petitioner on July 21, 2005. (Doc. 31.) The
matter is now ripe for disposition.

FACTUAL BACKGROUND

The following recitation of facts is extracted from the opinion
of the Pennsylvania Superior Court on direct review.

Freeland Borough Police Officer David Bogansky
received reports that appellant was intoxicated and
creating a public disturbance. Officer Bogansky and
Officer Carol Stofka, his partner, responded but
could not locate appellant. The officers received
another report that appellant was attempting to break
into the residence of Connie Dalessandro and was
staggering and screaming. The officers searched again
but could not locate appellant. Following further
complaints, the officers finally located appellant,
who appeared drunk and disorderly.

The officers possessed prior knowledge that appellant
had tested H.I.V. positive. Appellant not only acted
intoxicated and disorderly but appeared to have blood
on his hands. The officers did not have rubber gloves
in their possession and were aware that any exchange
of blood with appellant created the highest risk of
exposure to H.I.V. infection.

The officers arrested appellant. They inquired if he
had any sharp objects in his hands or pockets.
Appellant threw some coins at the hood of the police
cruiser and leaped on top of it. The officers seized
him and placed him in the rear seat of the police
cruiser. Since the officers lacked gloves, they did
not struggle with appellant to handcuff him.
Appellant began to bite the Lexan screen separating
him from the officers and threatened to urinate and
infect them with the AIDS virus. While being placed
in a holding cell, appellant grabbed Officer
Bogansky's glove and twisted it, tearing the glove from the officer's
hand. Officers Bogansky and Stofka then left
appellant in the cell to prepare the complaint. When
they returned, they found appellant had urinated all
over himself. The officers transported appellant to
the magistrate for arraignment.

Appellant informed the officers while being
transported that he was suffering from painful sores
in his mouth, was dying a slow, painful death, and
wanted the officers to experience the same thing.
Appellant then threatened to sodomize the officers'
wives and children and infect them with the AIDS
virus. When removed from the vehicle, appellant spat
in Officer Bogansky's face, hitting him in the eyes
and mouth. Appellant also spat in Officer Stofka's
face. The officers feared exposure to H.I.V.
infection. They immediately visited a local hospital
to obtain a base line test.

Officer Bogansky testified at the bench trial that
fear of not knowing for certain that he was not
infected was disturbing both to him and to his
family. Dr. Eugene Gorski testified he treated
Officer Bogansky but admitted on cross-examination
that he never examined appellant. Dr. Mark Lobitz
testified he was the treating physician for Officer
Stofka and will give him examinations every six
months for the next year and yearly tests thereafter.
Neither officer yet has tested positive for H.I.V.
Dr. Steven Pancoast testified on behalf of appellant
that saliva is not considered a high-risk medium
capable of transmitting H.I.V. Dr. Pancoast further
testified it was important to know the viral load of
the saliva since if it was low at the time, the very
slight chance of infection would be even further
reduced.

Appellant argued that there was no proof beyond a
reasonable doubt that his spitting possibly could
infect the officers. His spit had been wiped from the
face of the officers and cleaned out of the back seat
of the police cruiser. Thus, no samples of his
spittle had been preserved, and there was no
indication of its viral load and no one inspected
appellant's mouth to determine if indeed there were
open sores at that time.

In closing argument, counsel for appellant admitted
appellant was intoxicated and disorderly, spat on the
officers, and threatened to infect them but contended there was no proof that the
saliva could infect the officers. He further asserted
no one ever verified if appellant had open sores in
his mouth. The trial court convicted him of all
charges. This appeal followed imposition of sentence.

(Doc. 39-1, Pa. Super. Ct. Op. dated July 9, 1997 at 1-4.)

STANDARD OF REVIEW

A federal court is authorized to grant habeas relief to a
prisoner "in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States."
28 U.S.C. § 2254. Habeas corpus relief shall be granted if the state court
judgment: was contrary to clearly established federal law, as
determined by the Supreme Court of the United States; involved an
unreasonable application of clearly established federal law, as
determined by the Supreme Court of the United States; or was the
result of an unreasonable determination of the facts in light of
the evidence presented in state court. 28 U.S.C. § 2254(d).

A state court judgment is contrary to clearly established
federal law if the state court arrives at a conclusion opposite
to that reached by the United States Supreme Court "on a question
of law, or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable facts."
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

&nbsp; A state court judgment involves an unreasonable application of
clearly established federal law if "the state court identifies
the correct governing legal principle . . . but unreasonably
applies that principle to the facts of the prisoner's case."
Id. at 413. To be an unreasonable application of clearly
established federal law, the state court's application must be
objectively unreasonable. Id. at 409; Werts v. Vaughn, 228 F.3d 178, 197
(3d Cir. 2000). In determining whether the state court's
application of the Court's precedent was objectively
unreasonable, habeas courts may consider the decisions of
inferior federal courts. Matteo v. Superintendent,
171 F.3d 877, 890 (3d Cir. 1999). State court ...

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